Medically mediated reproduction: posthumous conception and the best interests of the child

Advances in medical technology have provided the means for posthumous reproduction to become a foreseen and intended event. This "medically mediated", "non coital" form of reproduction raises a number of esoteric legal and ethical issues, and has much to teach us about broader issues of personal autonomy, parenthood, gender relations, family structure and the best interests of the child. In this article the author, drawing on recent Australian jurisprudence, argues that the best interests of the potential child should be the primary consideration in any case involving posthumous conception. Drawing heavily on the normative foundations provided by international law, the author attempts to identify and clarify the interests of the child relevant in the context of posthumous conception. The author concludes that a denial of access to treatment, on the basis that treatment is contrary to the best interests of the child, has no sound basis. The current treatment of the interests of the deceased and surviving partner and the interests of the child as conflicting dichotomies fails to recognise the inherent logic in converging these interests. It is only in stripping away this discriminatory façade that one comes to recognise that the promotion of the rights of the deceased and surviving partner is likely, in many cases, to enhance the best interests of the child.